29 U.S.C. § 652(6). While the criminal liability of an employee under section 666(e) is an issue of first impression in this Circuit, it has recently been addressed by the Seventh Circuit. See United States v. Doig, 950 F.2d 411 (7th Cir. 1991). In Doig, the manager of a tunnel project in which three employees were killed when his employer violated OSHA regulations was charged with aiding and abetting his corporate employer in violating section 666(e). Doig's corporate employer was charged and convicted under section 666(e) for willful violations of OSHA regulations that resulted in the death of the three employees.

His first argument fails because, as explained above, the jury's finding of scienter was reasonable. Second, Koenig argues that under U.S. v. Doig, 950 F.2d 411 (7th Cir. 1991), an OSHA case, it is "logically inconsistent" to find an agent's actions both as proof of a company's primary violations and as proof of the agent's aiding and abetting violations. For the following reasons, his second argument also fails.

Two other cases are more pertinent to the issues in the present case. United States v. Doig, 950 F.2d 411 (7th Cir. 1991) and United States v. Shear, 962 F.2d 488 (5th Cir. 1992). In Doig the government indicted the S.A. Healy Company and Patrick J. Doig, its manager of a tunnel project, charging 12 counts of criminal violations under § 666(e).

First, although the duty imposed by OSHA regulations is a duty imposed not just on employers, but on employees as well, 29 U.S.C.A. § 654(b), sanctions for noncompliance with OSHA regulations by either an employer or employee rest solely on the shoulders of the employer; employees cannot be sanctioned for OSHA violations. See United States v. Doig, 950 F.2d 411, 413 (7th Cir. 1991) (concluding that, despite § 654(b)'s directive, OSHA does not permit sanctioning of employees for their own violations of OSHA; only employers can be sanctioned); Atlantic Gulf Stevedores, Inc. v. OSHRC, 534 F.2d 541, 553 (3d Cir. 1976) (same); see also Minichello v. U.S. Indus., Inc., 756 F.2d 26, 29 (6th Cir. 1985) ("OSHA regulations pertain only to employers' conduct.") (citing 29 U.S.C. § 654; McKinnon v. SkilCorp., 638 F.2d 270, 275 (1st Cir. 1981)). As a result, the duty to comply with OSHA regulations is, in a manner of speaking, nondelegable, because employers cannot avoid sanctions for noncompliance by arguing that it was the employee's, not the employer's, responsibility to comply with the duty imposed.

For that reason, "[o]ne cannot aid and abet an aider and abettor." United States v. Verners, 53 F.3d 291, 295 n.2 (10th Cir. 1995); see also United States v. Doig, 950 F.2d 411, 415 (7th Cir. 1991) ("[I]t is logically inconsistent to hold a corporation criminally liable because of the acts of its agent, and, at the same time to hold the agent liable for aiding and abetting the corporation."). The Attorney General has not produced a single case in which we have recognized a category of aiders and abettors of aiders and abettors.

At least one circuit has accepted that an officer or director of a corporation may be treated as an employer for OSHA purposes. See, e.g., United States v. Doig, 950 F.2d 411, 414 (7th Cir. 1991) ("A corporate officer or director acting as a corporation's agent could be sanctioned under § 666(e) as a principal, because, arguably an officer or director would be an employer. Of course, the corporation would also be responsible for its officer's actions.").

The manager of the tunnel project also was indicted under this section, but those charges were dismissed because the statute applies only to employers. United States v. Doig, 950 F.2d 411 (7th Cir. 1991). A jury found Healy guilty on all three counts (one for each deceased employee), and the judge assessed a total fine of $750,000.

For one thing, generally, corporations and their officers and directors are subject to criminal prosecutions and penalties. See, e.g., Flomo v. Firestone Nat. Rubber Co., LLC, 643 F.3d 1013, 1018-19 (7th Cir. 2011); U.S. v. Doig, 950 F.2d 411, 412 (7th Cir. 1991); U.S. v. Segal, 299 F. Supp. 2d 840, 845 (N.D. Ill. 2004). If the Court focused on the effect on these Defendants, rather than on the language of § 1-15(a), it would fail to capture whether § 1-15(a), when enacted as a generally applicable ordinance, was intended to be civil or criminal in nature.

An employee can neither directly commit that criminal offense nor aid and abet the employer in its commission of the offense. See, e.g., United States v. Shear, 962 F.2d 488, 490-95 (5th Cir. 1992) (superintendent was not "employer" to be held criminally liable for company's OSHA violation, nor could he be held liable as aider and abettor); United States v. Doig, 950 F.2d 411, 412-16 (7th Cir. 1991); United States v. Cusack, 806 F.Supp. 47, 48-52 (D.N.J. 1992). Congress, in enacting the OSHA statute, carefully limited the reach of its criminal provisions.

Congress intended to subject only employers, and not employees, to criminal liability under § 666(e). See United States v. Shears, 962 F.2d 488, 490-92 (5th Cir. 1992) (holding that supervisory employee was not an employer who could be held criminally liable under OSHA) (citing Atlantic Gulf Stevedores v. Occupational Safety Health Review Comm'n, 534 F.2d 541, 553 (3d Cir. 1976) (concluding that OSHA gives neither the Commission nor the Secretary of Labor the power to sanction employees for disregarding safety standards and commission orders)); United States v. Doig, 950 F.2d 411, 414 n. 5 (7th Cir. 1991) (employee could not be subjected to criminal liability as aider and abetter of corporate employer's alleged criminal violation of OSHA) (citing Atlantic Gulf Stevedores, 534 F.2d at 553). It has been held, however, that "an officer or director's role in a corporate entity (particularly a small one) may be so pervasive and total that the officer or director is in fact the corporation, and is therefore an employer under § 666(e)."